IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 21, 2002 Session

STATE OF TENNESSEE v. JOHN TRAVIS COLLINS, ALIAS

Direct Appeal from the Criminal Court for Knox County

No. 55819 Mary Beth Leibowitz, Judge

No. E2001-01301-CCA-R3-CD

August 27, 2002

The State challenges the trial court’s jurisdiction to modify sentence more than six years after

judgment. Generally a trial court would not have jurisdiction to modify a sentence more than 120

days after judgment becomes final. However, we conclude that where the defendant was never in

the physical custody of the Department of Correction, jurisdiction to modify sentence remained in

the trial court. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS,J., delivered the opinion of the court, in which THOMAST.WOODALL and

NORMA MCGEE OGLE, JJ., joined.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;

Randall Eugene Nichols, District Attorney General; and Patricia Cristil and Steven C. Garrett,

Assistant District Attorneys General, for the appellant, State of Tennessee.

James A.H. Bell (at trial), Steven Oberman (at trial), and Tommy K. Hindman (on appeal),

Knoxville, Tennessee, for the appellee, John Travis Collins, Alias.

OPINION

In February of 1995, the defendant, John Travis Collins, pled guilty to vehicular homicide,

a Class C felony. Pursuant to a plea agreement, he was sentenced to five years with all but nine

months to be served on probation. Pursuant to Tennessee Code Annotated section 40-35-314, the

trial court ordered the defendant to serve the nine months confinement in the Knox County Penal

Farm. In addition, the defendant was ordered to pay $50,000.00 restitution to the victim’s family,

and his driving privileges were suspended for a period of nine years. In March of 2001, the

defendant filed a motion for release from probation and modification of sentence, requesting the trial

court to modify the judgment and restore his driving privileges. The trial court granted the

defendant’s motion and restored his driving privileges. The State filed this timely appeal contending
1

 The defendant had apparently developed some health problems which precipitated his need to drive on

occasion in order to get medical treatment.

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that the trial court was without jurisdiction to modify its judgment more than six years after it

became final.

The defendant’s conviction for vehicular homicide resulted from an automobile accident

which was caused by the defendant’s vehicle striking the rear of the victim’s vehicle. The victim

died as a result of the accident, and a blood alcohol test revealed that the defendant’s blood alcohol

content was .25 at the time of the accident. At the hearing on the defendant’s motion for release

from probation and restoration of driving privileges, the defendant asserted that he had fulfilled his

restitution obligation, refrained from driving for seven years, completed DUI driving school, and

undergone material changes in his health and marital status.1 At the time of the hearing, the

defendant was employed, drug free, and married with a nineteen-month-old baby. The victim’s

family attorney also appeared at the hearing and informed the court that the family was aware of the

defendant’s change in circumstances. He further stated that the defendant had paid restitution ahead

of schedule, and the victim’s family had no objection to restoration of the defendant’s driving

privileges.

On appeal, the State argues that the trial court did not have jurisdiction to modify the

defendant’s sentence more than 120 days after the judgment became final and that the nine-year

revocation was part of the plea agreement which should not be altered. We disagree. While we

acknowledge that the trial court normally does not have jurisdiction or authority to change the

sentence in any manner once the judgment becomes final, Tennessee Code Annotated section 40-35-

319(b), we conclude that this case falls within the exception provided in Tennessee Code Annotated

section 40-35-212. “Unless the defendant receives a sentence in the department [of correction], the

[trial] court shall retain full jurisdiction over the manner of the defendant’s sentence service.” Tenn.

Code Ann. § 40-35-212(c). Furthermore, subsection (d) provides: 

Notwithstanding the provisions of subsection (c), the court shall retain full

jurisdiction over a defendant sentenced to the department during the time the

defendant is being housed in a local jail or workhouse awaiting transfer to the

department. Such jurisdiction shall continue until such time as the defendant is

actually transferred to the physical custody of the department.

Id. at (d).

In the instant case, the defendant was sentenced to five years in the Tennessee Department

of Correction. However, with regard to the manner of service, the trial court ordered the sentence

to be served in split confinement with nine months confinement at the Knox County Penal Farm and

four years and three months on supervised probation. The judgment reflects that the trial court relied

on Tennessee Code Annotated section 40-35-314(d), which provides that “if the sentence is eight

(8) years or less and combined with periodic or split confinement not to exceed one (1) year, the

court shall designate the place of confinement as a local jail or workhouse.” We note that subsection

(c) additionally provides that “the [trial] court shall retain full jurisdiction over the defendant during
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the term of such sentence and may reduce or modify the sentence or may place the defendant on

probation supervision where otherwise eligible.” Tenn. Code Ann. § 40-35-314(c).

Because the instant defendant was sentenced to less than one year of continuous confinement

with the balance of his sentence to be served on probation, he was properly ordered to serve the term

of confinement in the local jail. In addition, it is clear from the record that the defendant was never

transferred to the physical custody of the Tennessee Department of Correction. As such, the trial

court retained full jurisdiction over the defendant. Tenn. Code Ann. §§ 40-35-212(c); 40-35-314(a),

(c). This issue is without merit.

Accordingly, the judgment of the trial court is affirmed.

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JOHNEVERETTWILLIAMS,JUDGE